Introduction

Ken Bourke

Hi I am Ken Bourke, proprietor of All About Conveyancing and welcome to our Conveyancing blog.

It deals with NSW Property Law and processes only. What you read here may not apply in any other state of Australia.

We will be updating our blog on a regular basis, so please check back soon.

We invite you to ask us something and you will get a reply within 24 hours – it’s us giving something back to the market that supports us.

Conveyancing Posts

Swimming Pool Requirements – what you need to know

If you are selling a property in NSW with a swimming pool (or a spa pool), there are now certain requirements that need to be met:

  1. The swimming pool (or spa pool) must be registered on the NSW Swimming Pools Register. To register, go to http://www.swimmingpoolregister.nsw.gov.au/
  2. A valid certificate of compliance, or an occupation certificate or a valid certificate of non-compliance must be attached to the Contract for Sale. The only exceptions to this rule are the sale of a lot in a strata scheme or community scheme with more than 2 lots or the sale of a lot off-the-plan.

The following points help to clarify these rules:

  • The rules apply to any excavation, structure or vessel (including inflatable pools) capable of being filled with water to a depth greater than 30cm,
  • The certificate described in item 2 above is a “prescribed document” to the contract, which means that if it is not attached, then the contract may be rescinded by the purchaser any time within 14 days of the exchange date,
  • The certificate of compliance (or non-compliance) can be issued by the local council or by an accredited private certifier. Here is a list of accredited private certifiers in NSW … Private Certifiers 9-9-16.pdf
  • The certificate of compliance or occupation certificate is only valid if it was issued within the last 3 years,
  • If a certificate of non-compliance is attached to the contract, the vendor is effectively transferring the obligation to get a certificate of compliance to the purchaser, who will have 90 days from the settlement date to do so,
  • A certificate of compliance or non-compliance implies that the pool is registered but if an occupation certificate is used, evidence that the pool is registered must also be attached to the contract,
  • For a checklist on fencing requirements for all types of pools and spas, go to http://www.swimmingpoolregister.nsw.gov.au/checklists

If you’d like to know more about your legal requirements with regard to selling a property with a swimming pool, then come and talk to us at All About Conveyancing.

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Confused about benefits available to Home Buyers?

What exactly is available right now to home buyers in the way of grants and other benefits? The current position with grants and benefits can seem confusing because it has changed many times over the past few years.

Currently as at September 2016, the only benefits available to home buyers relate to new homes. If you are purchasing a new home or vacant land that you intend to build a new home on, then there are benefits for first home buyers and there are other benefits for everyone else. (If you are purchasing a home that is not a new home, then there are no grants or benefits available to you right now.)

FIRST HOME BUYERS

There are two benefits available to a first home buyer:

1. (a) Stamp Duty Exemptions and Concessions – First Home – New Home Scheme – For Vacant Land (where the purchaser intends to build and occupy)

i. If the purchase price is not greater than $350,000.00, then no stamp duty is payable,
ii. If the purchase price is greater than $350,000.00 and less than $450,000.00, then concessional duty is payable, which can be calculated by multiplying the purchaser price by 0.1574 and then subtracting $55,090.00.
iii. If the purchase price is $450,000.00 or greater, then no discounts or concessions are available.

1.(b) Stamp Duty Exemptions and Concessions – First Home – New Home Scheme – Homes (where the purchaser intends to occupy the home)

i. If the purchase price is not greater than $550,000.00, then no stamp duty is payable,
ii. If the purchase price is greater than $550,000.00 and less than $650,000.00, then concessional duty is payable, which can be calculated by multiplying the Purchaser price by 0.2474 and then subtracting $136,070.00.
iii. If the purchase price is $650,000.00 or greater, then no discounts or concessions are available.

2. Grants – First Home Owner Grant (New Homes)
If the purchaser (and their spouse) has never received a first home owner grant, nor owned and occupied a property before AND the purchase price is not greater than $750,000.00, then a grant of $10,000.00 is available.

NEW HOME GRANT
A grant of $5,000.00 is available for anyone to purchase a new home, a home off the plan and vacant land. Several conditions apply:
• For new homes, the purchase price cannot exceed $650,000.00 and for vacant land, the purchase price cannot exceed $450,000.00,
• Each purchaser is limited to 1 grant per financial year,
• Where the grant has already been provided on a particular property, no other person can claim the grant on the same property,
• If you receive a First Home Buyers grant, then you cannot also receive a New Home Grant on the same property.

Still confused? All About Conveyancing can help you to navigate the rules and regulations around purchasing property, and ensure that you know what you are eligble for and can receive in terms of grants and benefits.  Make sure you talk to us before you decide on a course of action.

Conveyancing Posts, First Home Buyers, Home Owner Grants , , , ,

New Conveyancing Rules for Verification of Identity (VOI)

A prudent conveyancer would have always taken reasonable steps to verify the identity of the client and the client’s authority to deal in a transaction.

New Conveyancing Rules have now been introduced by the NSW Government’s Land and Property Information (LPI) to mandate appropriate steps are taken, such that:
• Every client (or person acting on behalf of the client) must have their identity and authority verified;
• Evidence supporting the verification must be kept for at least 7 years.

One of the drivers for this requirement is the introduction of electronic lodgements and settlements and the NSW Registrar General has defined a set of “Model Participation Rules” for those electronic transactions. Within the Model Participation Rules is a standard for VOI. If the Conveyancer follows the standard, then they will be deemed to have taken reasonable steps and thereby will be afforded “safe harbour” in the event of a fraud.

To be within the standard, the Conveyancer may undertake a client interview personally or use an identity agent to do so. For Australian clients, there are several identity agents, one of which is Australia Post and for overseas clients, an Australian Embassy or Consular Office will need to be found. In all cases, the standard needs to be followed. The person being verified must produce original documents, which are grouped in client categories, the key documents being passport and drivers licence.

If the standard is not followed, then the Conveyancer must take alternative reasonable steps and the reasonableness will be determined by the circumstances of the situation.

Difficulties can arise for certain clients because:
• Attending the office of an identity agent or having them come to you can involve significant time, travel and cost,
• Not all Australia Post branches participate as identity agents,
• The key documents may not always be held and available.

For more information go to the NSW Land and Property Information at http://www.lpi.nsw.gov.au/registrar_general/verification_of_identity_and_the_right_to_deal

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Agents Disclosure Requirement regarding Property Inspection Reports

Starting 15 August 2016, Real Estate Agents have disclosure requirements related to pre-purchase property inspection reports. The concept is for these requirements to make it easier, and potentially cheaper, for a prospective home buyer to obtain pre-purchase building and pest inspection reports, and strata, neighbourhood or community scheme reports.

The agent is required to make a record of the following property inspection reports, but they only need to provide this information when the prospective buyer asks for the Sale Contract for the property.

• a building inspection report
• a pest inspection report
• a strata/community/neighbourhood inspection report
• a section 109 Certificate under the Strata Schemes Management Act 1996

The information required to be kept includes:
• the date on which the inspection was conducted
• who requested the report
• who prepared the report and their contact details
• whether the report author has professional indemnity insurance
• whether the report is available for re-purchase.

The following points are relevant to these requirements:
1. The agent is only required to keep records of reports that they are aware of – they are not required to make exhaustive enquiries to discover whether reports have been done,
2. No other parties, such as the vendor, the purchaser or the inspector have an obligation to tell the agent that the report exists,
3. Agents do not have to have a copy of the report itself,
4. The disclosure obligation of the agent arises only at the time the Purchaser asks for a copy of the Contract for Sale.

Conveyancing Posts

Swimming Pools

What you need to do if you own a Pool:

  1. Register it. This is now compulsory. Your pool can be registered online at www.swimmingpoolregister.nsw.gov.au. If your pool is not registered, you will be liable for a $220 penalty.
  2. From 29 April 2016, you will be required to provide a certificate of pool compliance when you sell your home (or even lease your home).

You can find more information on what compliance means at:

http://www.fairtrading.nsw.gov.au/ftw/Consumers/Product_and_service_safety/Pool_safety/Pool_fencing_requirements.page

 

 

 

Conveyancing Posts

Pre-Settlement Inspections

The Importance of that Final Inspection:

You are entitled to a final inspection of the property you are buying before you take possession of it. By this we mean that the Vendor cannot refuse you a final inspection within the last three days prior to settlement of your contract.

This inspection is probably the most important one of all.

The best time to do that inspection is after the property has been vacated by the previous occupants and as close to the time of settlement as possible. This narrows the window of opportunity for something to go wrong.

Things to Look for:

This inspection is all about the fact that you agreed to buy the property in a particular state (ie. the state it was in at the time of exchange of contracts). Therefore:

  1. Is everything that was in working order at that  time still in working order,
  2. Do those items included in the sale remain on the property,
  3. Has there been any damage to anything (other than through normal wear and tear),
  4. Has there been any excess rubbish left on the property.

Let’s not be picky about this; if the issue is small then just get on with it, but if you consider the issue is unjust then your best chance of getting that issue resolved is to request that it be resolved before you hand your money over.

What can you do about it ?

If you find an issue that you are unwilling to accept, then you have a couple of options:

  1. Since the Vendor is in breach of contract, you can with-hold settlement until the matter is resolved. Neither party can terminate the contract immediately for such a breach but you can delay settlement and give the Vendor time to resolve the problem,
  2. If a delay is not what you want (e.g. you may have already packed up your removalist and be waiting to move in), then it may be possible to continue with settlement but to with-hold part payment to the Vendor until the matter is resolved. Talk to your Licensed Conveyancer about arranging this.
Conveyancing Posts, General

The Neighborhood

You should ensure that the neighborhood that you are buying into meets your expectations. Do your homework.

  • Is the location suitable in terms of proximity to schools, parks, transport, medical facilities? You can find out these things through the council’s website and other on-line facilities if you are not in the area,
  • Drive by the property at all times of the day and in all weather conditions to get a feel for the neighborhood.
  • Talk to neighbors about their own experiences.

Do whatever you need to ensure that you are making a good choice not just in the house but also in the neighborhood.

If you want to find out more about this topic or others, just ask us or check out this web page:

www.allabout.net.au

Conveyancing Posts, General

Let the Buyer Beware

“CAVEAT EMPTOR”

You’ve probably heard this term before but what does it mean to you. Well, it is latin for “Let the buyer beware”. This is a doctrine applying to property whereby the buyer cannot recover from the seller for defects on the improvements.

One of the most important terms of the Contract is that you are purchasing the improvements and inclusions in their “current condition and state of repair”.

Perhaps the most common issue arising at the time of settlement is that the buyer finds a fault with the building or one if the items included in the sale that they didn’t previously know about. If you can prove that the fault was not there on the day you exchanged contracts to purchase the property, then the Vendor should correct the problem. “Proving it” is the issue.

There is probably no limit to the extent of pre-purchase inspections that you could do. However, they inconvenience the Vendor and they take time as well as costing you money so you need to be reasonable about it. Inspections that we would consider essential include:

Your own inspections – You should probably look at the property another time before locking yourself into a contract. You will notice more of the “little things” the second time. How far do you go ? Well, there are no rules; some people turn all the lights on to see if they work, they turn the elements of the stove on to see if it works, the air conditioner, the fans, the taps for water pressure, etc. Some people take photographs so that they can check before settlement that everything they expected to remain on the property have indeed remained on the property. It is up to you; the main thing is to satisfy yourself of the things that are important to you.

Pest Inspection – if the building has termites when you exchange contracts, then you have bought the termites as well. We would always recommend a pest inspection, it’s a small price to pay for certainty and you can’t be certain unless you get someone that knows what they are doing to look properly. Not only is a professional inspector qualified but he is insured against making a mistake. This one is a must.

Building Inspection – sometimes the building inspector finds major faults in the buildings to the extent that the buyer doesn’t proceed with the purchase. More often though, he will find things that you should know about before you buy because then you will know the things you can work on to prevent more significant damage later on. The building inspector will always find a fault because no building is perfect and whether that fault is minor or major, you should know about it.

If is often a good idea to do your inspections at different times of the day and in extreme weather conditions. For example, it will be hard to gauge the effectiveness of drainage when it is not raining, or of sunlight at night time.

If you want to find out more about this topic or others, check out this web page:

www.allabout.net.au

Conveyancing Posts, General

Be Clear About WHY you are buying

There are many reasons why people select a particular property to purchase, including:

a. Location

b. Price

c. Love of the Building

d. An intention to further develop

e. Proximity to friends and relatives

Etc.

What if you purchased a property with a particular intention in mind and then found out that what you intended to do with it was impossible? Here’s a few examples of what might go wrong:

  • The building you liked so much has a demolition order from council, or
  • You intend to demolish a building and construct an award winning design only to find that the existing house is heritage listed and you can’t touch it, or
  • You are a physiotherapist and you want to run your consulting rooms from the house you are buying, only to find out that council will not approve it for that, or
  • You are attracted to a property because the kids can walk to school from there, but the school is relocating within the next 12 months, or
  • You are buying a vacant lot to construct two villas as an investment, only to find that only one dwelling can be constructed on the site, or
  • You are buying a strata unit with the intention of constructing some outdoor decking only to find that the council has fire-proofing regulations that prevent the decking, or
  • You attend an auction and bid on a property just because it appears a bargain, only to find that the cost of repairing a water leak results in it not being such a bargain after all.

Try to write down the major reasons behind your choice of properties and then do your homework before you make an offer. Your Licensed Conveyancer will assist with all of this but you should tell them what is important to you. Can you be sure that your intended use is possible ?

If you want to find out more about this topic or others, check out this web page:

www.allabout.net.au

General

Get the Right Advice

“GET THE RIGHT ADVICE”

Most people don’t enter into the process of buying a home very often. When they do decide to buy, they probably have little idea of all the ins and outs of the entire process.

It’s hard to know exactly where to turn for good sound advice. Most people will open a discussion with their parents, their friends, their work colleagues, etc, and while you may get some great ideas from talking to these people, they may not necessarily be as up to date or as well informed as others.

Remember, this is probably the biggest financial transaction you have undertaken and the advice you receive (or more particularly if it is the wrong advice) will probably affect your life for a long time to come.

There is really no one person who can help you with every aspect of the transaction and the best advice we can give you is to seek specialist advice in each of the following areas:

a. Financial advice – Whilst we would all like to think that every transaction we do will turn to gold, the reality is that it doesn’t. You will be exposed to financial risks and you should go to someone that is trained and experienced in financial matters. This person will look at your own financial profile and will be able to direct you in terms of your borrowings, taxation implications, your capacity to repay and how to minimise the term and extent of your financial exposure.

b. Mortgage Advice – there are many different loan products available on the market and the one that suits you better than the rest may not be with the bank that you have always dealt with. Ask other lending bodies – banks, credit unions, cooperative housing societies or seek advice from a reputable mortgage broker who has access to all of those products that are available. Know what you can afford to spend before you start looking for a property.

c. Legal Advice – There are any number of legal pitfalls in property transactions. Licensed Conveyancers are specialists in Property Law; that is what they do. Your Licensed Conveyancer will describe the terms of the Contract to you, they will help you negotiate terms that are more favorable to you and they will ensure that you are aware of your own obligations as well as ensuring that the other party to the transaction honors their obligations. Most importantly they will discuss with you the characteristics of the property you are buying, which may or may not be exactly what you thought it was.

d. Building Quality Advice – Since the Seller does not have to admit to quality defects, you should get advice from a professional as to those defects if any. Know what you are getting in to before you buy it. Your licensed conveyancer will be able to assist with ordering these inspections.

If you want to find out more about this topic or others, check out this web page:

www.allabout.net.au

 

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